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You just finished interviewing and you're convinced you've found the perfect candidate. However, after you post the offer, new information comes to light that changes your mind, or circumstances change.
You now need to withdraw the job offer. But can you withdraw an offer of employment?
This will ultimately depend on whether you have made the applicant a conditional or unconditional job offer.
Withdrawing unconditional job offers
An employer can withdraw an offer of employment at any time until it is accepted. However, once the applicant has accepted an unconditional job offer, there is a legally-binding Contract of Employment between the employer and the applicant. As such, if you later have a change of heart and decide not to hire the individual, they may take legal action against you for breach of contract.
The jilted employee may claim that they have suffered loss, especially if they resigned from their previous role in order to take up your job offer.
They may be entitled to damages or compensation in line with their notice period. This is the time for which they would have been employed before you would have been permitted to dismiss them. This can be extremely expensive, especially in the case of employees in senior or managerial roles who have long notice periods.
In addition, applicants are protected from being discriminated against during the recruitment stage. Therefore, if you withdraw the job offer for a discriminatory reason, there would be other losses the applicant could claim, too.
Withdrawing conditional job offers
A conditional job offer, on the other hand, can legally be withdrawn if (and only if) the applicant doesn’t fulfil all the conditions of the offer. The conditions of an offer could include satisfactory references, a criminal record check, a qualifications check or a health check.
However, if the applicant does meet all of the conditions and you decide to withdraw the offer anyway, they may take legal action against you for breach of contract.
Again, employers must not withdraw a job offer on the basis of a discriminatory reason. If you have made a conditional offer and found that their health condition constitutes a disability, you must be very careful when deciding to withdraw a job offer. Withdrawing a job offer simply because the medical check shows that the applicant has a disability is likely to constitute direct discrimination.
Think before you act…
In these situations, prevention is always better than cure. The best way to avoid having to withdraw a job offer is to always thoroughly consider the applicant’s suitability for the role first. Ask yourself not only whether they have the relevant qualifications, skills and personal characteristics needed for the role, but also whether they will be a good fit for your team.
Of course, you should also think about where you’re at as a business, and whether now is the optimum time to recruit. If other business conditions change, will you still be in a position to go ahead? Have you overlooked somebody internally who may be a better candidate for the role? Asking these questions now will help to prevent U-turns and difficult situations down the line.
Can I withdraw a job offer due to coronavirus?
If COVID-19 has impacted your business and caused you to rethink your hiring decisions, the legal position is the same as in normal circumstances in that you can withdraw an offer at any time prior to it being accepted.
If the offer was conditional, i.e. upon receiving satisfactory references or something else, then you can withdraw the offer at any stage prior to those conditions being fulfilled and there will be no cost to you. However, if the offer has been accepted (even verbally) and was either unconditional or the conditions have been fulfilled, you can’t withdraw the offer.
You can, however, terminate the contract (so that the potential employee never actually starts work with you) by serving whatever notice is required under the terms of the contract. For example, if there is a one-month notice period which takes effect immediately, you can pay one month’s payment in lieu of notice to terminate the contract.
Speak to a professional now
Facing an employment dilemma? Need advice on the legal position and what to do next? From withdrawing a job offer to common issues such as misconduct and sickness absence, our Employment Law specialists can offer step-by-step guidance based on your specific situation. Trusted by 17,700 employers across the UK, we can help you to weigh up your options, avoid legal pitfalls, and achieve your preferred outcome with minimal disruption.